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The different facets of the proportionality principle as applied by the supreme court in India

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Abstract

The evolution of the proportionality principle in India has, at best been an experiment of sorts. Its incorporation as a review tool was initially confined to the deciding the legality of the administrative decision-making. At this stage, it was used more as an alternative to the Wednesbury standard of reasonableness rather than an independent review procedure. Over the years, however, as the principle found more and more utility as rights reviewing mechanism, its has made a major impact in review jurisprudence in India. Today the principle is consistently used to deal to review the constitutionality of legislations limiting fundamental rights. Proportionality has featured extensively on issues concerning privacy rights, individual autonomy and boundaries of free speech and expression. The present article is a study of the different facets of the proportionality principle as has been applied by the Supreme Court of India. The article takes a critical look on the interrelationship between the proportionality principle and the pre-existing review procedures in India and the justification—often historical—that has been used by the Supreme Court to give a proportionality a place in review jurisprudence in India.

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Notes

  1. Navin Sinha, ‘Three Arguments for the Application of Proportionality in Rights Review in India|Economic and Political Weekly’ 26; Kai Möller, The Global Model of Constitutional Rights (1st ed, Oxford University Press 2012) 181.

  2. There are significant differences in how respective jurisdiction phrases the legitimacy requirement. For, example, in Canada the Court requires the objective of the rights restricting measure should “relate to concerns which are pressing and substantial R v. Oakes [1986] 1 SCR 103.” In South Africa, the Court requires the objective to be “reasonable and necessary in a democratic society”, S v Makwanyane & Another 1995 (3) SA 391 (CC) [104]. IN Israel the Court relies on “pressing or substantive social interest”, HCJ 5016/96 Horev v. The Minister of Transport [1997] IsrSC 51(4) 1, at 197-98, para. 53. In India it is framed as “legitimate interest”, (see infra).

  3. Jud Mathews and Alec Stone Sweet, ‘All Things in Proportion? American Rights Review and the Problem of Balancing’ 60 EMORY LAW JOURNAL 80, 803.

  4. Grimm, D. (2007). Proportionality in Canadian and German Constitutional Jurisprudence. The University of Toronto Law Journal, 57(2), 383-397. Barak, A. (2012). Proportionality: Constitutional Rights and Their Limitations. Cambridge University Press.

  5. Cohen-Eliya, M., & Porat, I. (2010). American Balancing and German Proportionality: The Historical Origins. International Journal of Constitutional Law, 8(2), 263-286.

  6. Alexy, R. (2002). A Theory of Constitutional Rights. (J. Rivers, Trans.).

  7. Kumm, M. (2010). The Idea of Socratic Contestation and theRight to Justification: The Point of Rights-Based Proportionality Review. Law & Ethics of Human Rights, 4(2).

  8. Shakhboz Shavkatovich Sattorov, ‘Dichotomy of Principles and Rules in R. Alexy’s Dual Theory of Law’ (2021) 118 SHS Web of Conferences 01014, 1,2.

  9. Peterson, N. (2020). Alexy and the “German” Model of Proportionality: Why the Theory of Constitutional Rights Does Not Provide a Representative Reconstruction of the Proportionality Test. German Law Journal, 21(2), 163-173. Retrieved 06 03, 2022, from https://www.cambridge.org/core/journals/german-law-journal/article/alexy-and-the-german-model-of-proportionality-why-the-theory-of-constitutional-rights-does-not-provide-a-representative-reconstruction-of-the-proportionality-test/2EB57D7431F604A4FE37663F4

  10. Alexy (n 6).

  11. Chintaman Rao versus The State Of Madhya Pradeshram, 1950 SCR 759 (Supreme Court 1951)—The case dealt with the validity of The Central Provinces and Berar Regulation of Manufacture of Bidis (Agricultural Purposes) Act, 1948. The Act prohibited the manufacture of “bidis” during the agricultural season, which was challenged as interfering with the petitioners “right to carry on their trade or business” under cl. (1) (g) of Art 19 of the Constitution.

  12. Mathews and Sweet (n 3) 799.

  13. Dieter Grimm, ‘Proportionality in Canadian and German Constitutional Jurisprudence’ (2007) 57 University of Toronto Law Journal 383, 384; Jud Mathews and Alec Stone Sweet, ‘All Things in Proportion? American Rights Review and the Problem of Balancing’ 60 EMORY LAW JOURNAL 80, 799.

  14. Wednesbury has often been criticised for being setting high standards of irrationality like the ‘red hair type standard’ or ‘so outrageous in its defiance of logic’ that it is doubted whether such standards can even be achieved. In R v. Lord Saville of Newdigate Exp A (1999) 4 All E.R. 860 p33, Lord Wolfe M.R. held that to hold a decision as irrational ‘would often do injustice to the decision maker who is the most rational of persons.’ In R (Daly) v. Secretary Lord Cook had to say about this principle, ‘and I think the day will come when it will be more widely recognised that the Wednesbury case was an unfortunately retrogressive decision in English administrative law, ins.

  15. Council of Civil Service Unions v Minister for the Civil Service (The GCHQ case) [1985] AC 374, [1985] ICR 14.

  16. Paul Craig, Administrative Law, (First South Asia Edition, Sweet and Maxwell 2011) 618.

  17. Ibid 628.

  18. Union Of India & Another vs G. Ganayutham 1997 7 SCC 463;Om Kumar And Ors vs Union Of India AIR 2000 SC 3689; Chairman And Managing … vs P.C.Kakkar Chairman And Managing (2003) 4 SCC 364; Pravin Kumar vs Union Of India And Ors Civil Appeal No. 6270 of 2012; Coal India Limited v. Mukul Kumar Choudhuri (2009) 15 SCC 620; Internet and Mobile Association … vs Reserve Bank Of India (2020 SCC Online SC 275); Laxmibai vs The Collector Nanded Appeal (Civil), 1622 of 2020,; Damoh Panna Sagar Rural Reg. … vs Munna Lal Jain (2005) 10 SCC 84; Kerala State Beverages (M And M) … vs P P Suresh And Ors. Etc. Etc. on 4 October, 2019 (2010) 6 SCC 614; Chairman, All India Railway Recruitment Board v. K. Shyam Kumar (2010) 11 SCC 314;

  19. Analytical clarity in the above context refers to firstly, how much influence does the principle have in the decision-making process. The analysis, in other words, consists of a sum total description of different processes like the necessity for introducing the reviewing principle in lieu of pre-existing procedures, the gap in the pre-existing reviewing procedures that is supposed to be filled by the reviewing principle and what difference does the new principle make in the decision-making process.

  20. Civil Appeal No 11975 of 2016. Available at https://main.sci.gov.in/jonew/judis/44381.pdf (accessed on 16/02/2021).

  21. ibid para 54 U.C.L.A. L. REV. 1267, 1315 (2006).

  22. Badrinath versus Government Of Tamil Nadu IR 2000 SC 3243; Punjab Communications Ltd versus Union Of India & Others AIR 1999 SC 1801;V. Ramana versus A.P.S.R.T.C 2002 (92) FLR 247, (2001).

  23. Richard H Jr Fallon, ‘Strict Judicial Scrutiny’ U.C.L.A. L. REV. (2006) 54 1267,

  24. See generally, Gerald Gunther, The Supreme Court, 1971 Term—Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972).The claim has subsequently been challenged by commentators writing on the area, more specifically Adam Winkler, ‘Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts’ 59 VANDERBILT LAW REVIEW 81, 800, Karen M Berberich, ‘Strict in Theory, Not Fatal in Fact: An Analysis of Federal Affirmative Action Programs in the Wake of Adarand v. Pena’ (1995) 11 Journal of Civil Rights and Economic Development 37.

  25. Vicki Jackson argues the US does not give the same meaning to rights as other jurisdictions does. According to Jackson, constitutional rights in the US are treated as lacking external limitation. For example, in one of her passages she says that ‘when US jurists, lawyers, or scholars say a right has been ‘infringed’ this is typically the end of analysis.’ Vicki Jackson, Constitutional Law in the age of Proportionality (2015) The Yale Law Journal 3094, 3096.

    Moshe Cohen and Iddo Porat makes similar claims regarding the German system of proportionality and American balancing system. According to them the difference follows from the perfectionist and communitarian aspirations of German doctrine and the anti-perfectionist and distrust of government underlying US balancing. They argue that the US model follow system of rights adjudication that is intent-based, while the German model is more or less impact-based. Moshe Cohen Eliya and Iddo Porat, Proportionality and Constitutional Culture (Cambridge University Press 2013) 19.

  26. For American exceptionalism see generally, Stephen Gardbaum, The Myth and Reality of American Constitutional Exceptionalism, (2008) Mich Law Review 391.

  27. For categoricalism and balancing, see generally Jospeh Blocher, Categoricalism and Balancing in First and Second Amendment Analysis (2009) 84 New Yok University Law Review 375; Frederick Schauer, Rules, the Rule of Law, and the Constitution, (1989) 69 CONST. COMMENT. 75: Kathleen M. Sullivan, The Supreme Court, 1991 Term—Foreword: The Justices of Rules and Standards, (1992)106 HARV. L. REV. 24,

  28. For the emergence of proportionality as a model of global constitutionalism see generally, Stephen Gardbaum, The New Model of Global Constitutionalism, (Cambridge University Press 2013); Sweet and Mathews, Proportionality Balancing and Constitutional Governance: A Comparative and Global Approach (OUP 2019); Alec Stone Sweet & Jud Mathews, “Proportionality Balancing and Global Constitutionalism”, (2008). 47 Colum. J. Transnat’L L. 72. For migration of constitutional ideas see Sujit Choudhary, Migration as a New Metaphor in Comparative Constitutional Law in Sujit Choudhary (eds) The Migration of Constitutional Ideas (Cambridge Publication 2007).

  29. See generally A Theory of Constitutional Rights, Robert Alexy (Julian Rivers trans 2010) OUP 2010; Also see generally, Robert Alexy, Constitutional Rights, Balancing, and Rationality, 16 RATIO JURIS 131, 135 (2003).

  30. ibid.

  31. AIR 2008 SC 663.

  32. ibid.

  33. The Equality Clause in the present context of the Indian Constitution refers to Article 15 (Equality before Law), Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and Article 16 (Equality of opportunity in matters of public employment).

  34. See generally, Moiz Tundawala, Invocation of Strict Scrutiny in India: Why the Opposition, 3 NUJS Law Review (2010).

  35. Anuj (n16) para 24.

  36. Anuj (n 31) para 35.

  37. Tarunabh Khaitan, Beyond Reasonableness—A Rigorous Standard of Review for Article 15 Infringement, 50 (2008) 40 (2) Journal of the Indian Law Institute, 177, 179.

  38. For an illuminating insight on strict scrutiny see Richard Fallon. Strict Judicial Scrutiny, (2007) 54 UCLA Law Review 1267; Adam Winkler, Fatal in Theory, Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts (2006) 59 Vanderbilt Law Review 793.

  39. See generally, Navin Sinha, A Rhetorical Device or a Procedural Methodology: The Mystery of the Proportionality Principle (2016) 3 Indian Bar Review 35.

  40. JT2009 (10) SC 615, para 24.

  41. For further discussion see infra 2.3.

  42. See generally, Barak (n4) 335–337.

  43. Rakesh (n40) para 28.

  44. ibid 41.

  45. (2008) 6 SCC 1.

  46. Saurabh Chaudhari and Ors. v. Union of India and Ors. (2003 (11) SCC 146, the case concerned the validity of a Delhi University order which preferred institutional reservation over domicile reservation in the matter of admission into the PG course run by government medical colleges.

  47. The Constitution (Ninety-Third Amendment) Act, 2005; The clause read as follows:-"Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to the educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30 (emphasis by the author)."

  48. Ashoka (note 28) para 139. The court observed “While interpreting the constitutional provisions, foreign decisions do not have great determinative value. They may provide materials for deciding the question regarding constitutionality. In that sense, the strict scrutiny test is not applicable and indepth scrutiny has to be made to decide the constitutionality or otherwise, of a statute.”

  49. ibid.

  50. Proportionality and Variable Intensity of Review” (2006) 65 Cambridge L.J. 174, 176.

  51. Rosalind Dixon suggests as valuable indices in calibrating a test of necessity under a structured proportionality. Some of these Dixon suggests consists of “attention to whether a law imposes a total or partial prohibition on relevant classes of expression, and/or is selective or under-inclusive in the expression it targets for regulation”. Similarly, Dixon also suggests similar other factors ‘as relevant to testing a law’s adequacy in the balance’. Some of these she suggests are “the degree to which a law imposes a minimal, versus significant burden on expression; the degree to which it leaves open adequate, alternative channels of communication; the nexus between the expression regulated and ‘political’ matters; and the degree to which laws are vague versus clearly defined in scope. Rosalind Dixon, Calibrated Proportionality, (2019) 48 UNSWLR. Available at SSRN: https://ssrn.com/abstract=3417633 or http://dx.doi.org/10.2139/ssrn.3417633 (accessed on 16/02/2021).

  52. WP(C) No.7455/2001.

  53. Sec 377 read as follows, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine".

  54. Naz (n52) para 113, In coming to this conclusion the Court read sexual orientation as “sex,” which is one of the prohibited grounds of discrimination under Art 15 (1) of the Constitution.

  55. Ibid.

  56. Civil Appeal No. 10972 OF 2013.

  57. W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016.

  58. Ibid para 247; For example, invoking Art 14 the court observes.

    “In view of the test laid down in the aforesaid authorities, Sec 377 IPC does not meet the criteria of proportionality and is violative of the fundamental right of freedom of expression including the right to choose a sexual partner. Sec 377 IPC also assumes the characteristic of unreasonableness.’ ibid.

  59. Aharon Barak, Proportionality and Principled Reasoning (2010) 4 Law and Ethics of Human Rights 1, “When the right is of great importance, then the criterion for evaluating the urgency of the limitation is that of a pressing or substantive social interest; Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press 2012) 544.

  60. Navtej (n 57) para 377.

  61. Barak (n 59) p 9.

  62. Navtej (n 57) para 94.

  63. WRIT PETITION (CIVIL) NO 494 OF 2012 available at https://main.sci.gov.in/supremecourt/2012/35071/35071_2012_Judgement_24-Aug-2017.pdf last visited 16/02/2021.

  64. Prior to the present case, there was no clear judicial consensus on the status of right to privacy as a fundamental right in India. Sever decisions like Govind v State of MP (1975) 2 SCC 148; C Rajgopal v State of TN (1994) 6 SCC632; PUCL v UOI (1997) 1 SCC 301 had affirmed right to privacy as a fundamental right, Whereas, MP Sharma v Satish Chandra Dist Magistrate 1954 SCR 1077 and Kharak Singh v State of UP (1964) 1 SCR 332 had held right to privacy is not a part of the constitution of India.

  65. Puttaswamy I (n51).

  66. ibid 3 H.

  67. Puttaswamy I (n 63) para 180.

  68. ibid para 185.

  69. Dixon (n51) p 1.

  70. Barak (n 38) p 544.

  71. See generally Richard Stacey, The Magnetism of Moral Reasoning and the Principle of Proportionality in Comparative Constitutional Adjudication (2019) 67 The American Journal of Comparative Law 435.

  72. ibid 445.

  73. Winkler (n 24) p 803 ‘alternative justification of strict scrutiny invokes heightened review as a means of providing vigorous judicial protection for core rights while nevertheless pragmatically allowing "a safety valve in the event of a 'hard case,' where the governmental and societal reasons for infringing upon an individual right are particularly strong (or in the language of the doctrine, 'compelling')." Also see, Jospeh Blocher, Categoricalism and Balancing in First and Second Amendment Analysis (2009) 84 New Yok University Law Review 375; Also see Fallon’s criticism of the idea in supra Fallon (n 22) p 1306.

  74. Puttaswamy I (n 63) p 838.

  75. ibid.

  76. ibid.

  77. Puttaswamy v Union of India WRIT PETITION (CIVIL) NO. 494 OF 2012.

  78. ibid para 130.

  79. ibid para 144.

  80. The object of the Act read as follows.

    ‘An Act to provide for, as a good governance, efficient, transparent, and targeted delivery of subsidies, benefits and services, the expenditure for which is incurred from the Consolidated Fund of India, to individuals residing in India through assigning of unique identity numbers to such individuals and for matters connected therewith or incidental thereto’.

  81. See generally, Aparna Chandra, ‘Proportionality in India: A Bridge to Nowhere?’ (2020) 3 University of Oxford Human Rights Hub Journal 32, 58.

  82. See for example In Chintaman Rao v. The State of Madhya Pradesh, [1950] S.C.R. 759, "The phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. In State of Madras v. V.G. Row,that is to say, the Court should consider not only factors such as the duration and the extent of the restrictions, but also the circumstances under which and the manner in which their imposition has been authorised.

  83. For manifest arbitrariness see generally, Dhruva Gandhi Rethinking “Manifest Arbitrariness” in Article 14: Part I—Introducing the Argument https://indconlawphil.wordpress.com/2020/05/06/rethinking-manifest-arbitrariness-in-article-14-part-i-introducing-the-argument/ (visited on 16/02/2021).

  84. Puttaswamy II (n 77) p 838.

  85. In Puttaswamy II different Judges formulated the legitimacy test interest as either compelling interest, legitimate interest and public interest. Chandrachud J formulated the test of legitimate interest, whereas Justice Chelameshwar and Justice Sapre have used the test of compelling state interest. In Puttaswamy II legitimate interest was chosen because it was supported by the majority. supra Puttaswamy II (n 77) para 124.

  86. Grimm (n1), 385.

  87. ibid.

  88. Saurabh (n46) p 129.

  89. Barak (n4) 1-26.

  90. ibid.

  91. See generally ‘Necessity and Proportionality: Towards A Balanced Approach?’, Hart Publishing, Oxford and Portland, Oregon, 2016.

  92. Puttaswamy II (n 77) para 127.

  93. For an illuminating read on the status of proportionality principle in administrative law, see generally, Ashis Chug “Is the Supreme Court Disproportionately Applying the Proportionality Principle”, (2004) 8 SCC (J) 33.

  94. See for example, the position taken by the Delhi High Court in Naz Foundation. After having determined the constitutionality of sec 377 under the rational basis review under Art 14 of the Constitution the court once again applied the strict scrutiny test to determine its constitutionality. This does create confusion as to the actual applicable scope of the review procedures. After having identified sec 377 as tainted with a discriminatory object the appropriate test would have been strict scrutiny, assuming that it is the appropriate review procedure under Art 15 (1). If not, then the review procedure would be the rational basis review. The law could either be discriminatory or not. If it is discriminatory Art 15 is invoked if not then Art 14. Naz (n 52).

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  1. Navin Sinha

    Present address: Symbiosis Law School, Symbiosis International (Deemed University), Pune, India

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    Navin Sinha & Fakkiresh S. Sakkarnaikar

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Sinha, N., Sakkarnaikar, F.S. The different facets of the proportionality principle as applied by the supreme court in India. Const Polit Econ 35, 22–44 (2024). https://doi.org/10.1007/s10602-023-09399-9

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